Another way by which history legitimates judicial review
james.wilson at law.csuohio.edu
Mon Mar 5 05:42:05 PST 2012
The following comment, which has been slightly revised, got lost in the internet shuffle. Professor Scarberry suggested I resubmit it:
As far back as Lord Coke, lawyers and judges have used "expertise"
to justify their power. Coke told a skeptical King that only lawyers
could decide certain issues because of their "artificial reason,"
gained by long study and experience. While that argument is easily
applicable to areas like torts and contracts, it is less compelling
when used to defend robust constitutional judicial review. Does it
really take a great deal of legalistic expertise to resolve such
contentious issues as affirmative action, abortion, gun control, or
campaign finance? In most other countries, the citizenry wrestles
with such issues, often doing a better job than our Court. But
history and precedent-parsing help solve the rhetorical problem.
History creates constitutional expertise for the judiciary and the
professoriate: most citizens will not know much about the evolving
and often contentious historiography of a particular text. What is
the average person to make of both side's arcane textual
distinctions and historical inferences in a case like /Heller/?
While I believe there are many good reasons why the Court should
continue to consider text and history, all those antiquarian details
also provide a nice patina of obfuscating legitimacy. In some ways,
legal historicism is not all that different than black robes.
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